This article is written by Diksha Paliwal, a practising advocate in the High Court of Indore and a student of LLM (Constitutional Law). The article consists of a detailed analysis of Section 207 of the Code of Criminal Procedure, 1973. The article starts by providing a general overview of the Section, followed by a brief description of the documents furnished to the accused under this Section. Lastly, it critically analyses the extent to which the Section is being implemented in our criminal justice system.
It has been published by Rachit Garg.
Article 21 of the Indian Constitution guarantees the accused’s right to a fair trial. The Supreme Court of India also acknowledged the right to a fair trial as a crucial part of the criminal justice system. The right to a fair trial shall not be compromised at any cost. The right to a fair trial provides the accused with an opportunity to protect himself and defend against the allegations made against him. Section 207 of the Code of Criminal Procedure, 1973, is one such safeguard provided to the accused that ensures a fair trial. This Section corroborates providing all the documents to the accused that form a part of the investigation process. The Court is duty bound to provide all the relevant documents, like a police report, FIR, the statement recorded under Section 161/164 of the CrPC, or any other document that forms a part of the police investigation, to the accused. Let’s have a detailed understanding of the Section.
What is Section 207 of the CrPC: a general view
Section 207 of the Code states that the accused must be provided with copies of documents or relevant excerpts from the documents upon which the prosecution has relied. These documents must be provided to the accused free of cost. The reason behind supplying these copies is to acquaint the accused with the charges brought against him. The accessibility of these documents to the accused also makes him aware of the materials that the police and prosecution have used to prove his guilt. In case the magistrate fails to comply with the provisions of Section 207, the accused may use it as a plausible ground for setting aside his conviction.
The Section states that the accused should be given the copies without delay, and no cost shall be demanded from the accused for the furnishing of these copies. The Madhya Pradesh High Court in the case of Bhole v. State of M.P. (1992), held that the term ‘without delay’ in Section 207 does not denote that the copy must be provided immediately or forthwith since both these terms are quite different. The Court further clarified its contention by saying that the term ‘without delay’ holds much less speed than the term ‘forthwith’. Also, it was held that the word ‘shall’ used in Section 207 is a directory in nature and not mandatory. Hence failure to comply with these provisions will not necessarily lead to vitiating of the trial.
As per Section 207, the documents that must be made accessible to the accused are;
- police report,
- FIR recorded under Section 154,
- statements of all the persons examined by the prosecution as witnesses recorded by the police under Section 161(3), provided that documents wherein a special request under Section 173(6) has been made by the police officer for the exclusion of any document can be excluded,
- confessions and statements recorded under Section 164,
- any other document or extracts from any document which were forwarded to the magistrate.
In cases wherein the police request the exclusion of any document, thus after considering the reasons given by the police, can direct that a copy of the statement be provided to the accused. Hence, if the magistrate deems it fit, the statement copy that the police requested to be excluded shall be furnished to the accused. In a situation where the magistrate thinks that any such document or extract is voluminous, the magistrate can ask the accused to inspect that copy in court via a pleader or personally rather than providing a copy.
In the case of Seikh Maheboob v. State of Maharashtra (2004), the complainant made a written report to the police about a murder case. The accused in that case requested a copy of the documents by writing an application while the trial was going on, however, it was not provided to him. The Court held that this act of non-production of documents despite receiving an application from the accused could mean that documents may have been suppressed by the prosecution.
It was held in the case of Harminder Singh Pritam v. State of Maharashtra (1990) that while providing the documents to the accused, there is no mandatory rule that the documents must be provided in English; however, if the accused requests so, he is entitled to be provided with a copy of the documents in English.
Scope of Section 207 CrPC
Section 207 of the Code deals with supplying copies of statements (recorded by the police), other relevant documents, or extracts from the documents to the accused. It confers a duty on the magistrate to supply copies of documents prescribed under the Section, that too free of cost. The magistrate is obliged to make sure that these copies are furnished to the accused as stated in Section 238 of the CrPC. The Section makes sure that the documents on which the prosecution relies to prove its case are supplied to the accused to conduct a fair trial. Providing the accused with copies of documents is very crucial to ensuring a free trial so that the accused can defend himself against the charges and try to establish his innocence.
The Karnataka High Court in the case of Chirag R. Mehta v. State of Karnataka (2022), held that a petitioner or the accused is entitled to get all the copies of charge sheet material, and wherein he is denied for any such material this would amount to an unfair trial, thus, contrary to the principles of natural justice and fairness. In the Bangalore riots in a case titled Muzammil Pasha v. National Testing Agency (2022), the Karnataka High Court directed the National Investigation Agency to furnish the documents, which consist of statements of the witnesses recorded by the local police, in two weeks to the accused in the case.
The Calcutta High Court, while dealing with the scope of Section 207 in the case of Sri Anish Loharuka v. The State of West Bengal (2022), held that where there is a possibility of disclosure of a victim’s identity in cases of sexual offences against a minor, then the Court may order that the accused or his lawyer inspect the documents rather than supplying a copy of the documents. However, the Supreme Court, in the case of Waheed-Ur-Rehman Parra v. Union Territory of Jammu and Kashmir (2022), held that even the documents containing the statements of protected witnesses can be furnished to the accused by providing him with a copy of redacted statements, thereby ensuring the safety of the witnesses as well. But this is not a mandatory condition that must be followed. What must be given priority in such cases is the victim’s security. In such sensitive cases, if the court asks the accused to inspect the documents rather than supplying him with copies, no wrong is done against the accused in such a scenario.
The courts in several cases have also opined that the prosecution cannot say that an accused cannot move successive applications before the court under Section 207 of the CrPC. The provision of Section 207 itself contemplates providing copies to the accused. The interpretation of Section 207 must be done from the accused’s standpoint and not that of the prosecution because this section was enacted to safeguard the accused’s rights.
Object of Section 207 CrPC
When a person is accused of an offence, his life and liberty are at stake, so safeguarding the rights of the accused is an important part of criminal jurisprudence. No person shall be jeopardised unfairly, and also, the principles of natural justice must be followed while conducting a trial, thus ensuring fairness in the trial. Section 207 of the Code fulfils this concept of a fair trial, thereby providing the accused with a pathway towards a free and fair trial. The objective of this section is to provide the accused with the documents that the prosecution relies on. Thus, providing the accused with the opportunity to defend himself. Also, this will make the accused aware of the charges and materials brought against him, thus, giving him an idea of what he will be facing in the trial.
What are the documents under Section 207?
The principles of natural justice provide that an accused has a right to know about the charges made against him. Thus, the court must provide him with the documents or other extracts that the prosecution has relied upon to prove his guilt. The Magistrate has to furnish the documents to the accused before the commencement of criminal proceedings. The Court is under obligation to supply copies of such documents to the accused. The word ‘document’ in the Section denotes all the materials that have been relied upon and used by the prosecution to prove the charges made against the accused. All these documents are the ones that enable the accused to prepare for his defence.
In the case of Arvind Kejriwal v. State NCT of Delhi (2020), the Court while dealing with the scope of supplying documents under Section 207, held that while reading Section 173(5), Section 173(6), and Section 207(1) of the Code together, they provide that the police officer is bound to furnish all the statements recorded under Section 173(5)(b) to the magistrate so that he can further supply copies of these documents to the accused as provided under Section 207.
List of documents to be furnished to the accused
The documents that need to be supplied as per Section 207 are a police report, an FIR, statements recorded and confessions, and any other documents or relevant extracts. Let’s have an overview of these documents.
In common parlance, the term ‘report’ means to convey or disseminate information, or to deliver information regarding any incident or any other matter. A formal or written representation of the facts of any case or any recommendation to perform a certain action can be termed a report. The term ‘police report’ is defined in the CrPC as a report forwarded by the police officer to the magistrate under Section 173 (2). It is a record stating the facts of the case made by the police. This report forwarded to the magistrate culminates in the initiation of criminal proceedings.
The meaning of the term ‘police report’ was clarified in the case of State of West Bengal v. Anwar @ Answar Ali @ Anwar Rehman (2000). The Court stated that the term ‘police report’ is defined in Section 2(r) of the and is about the report prescribed under Section 173(2) only. It does not include the documents or statements under Section 173(5) of the Code. The Court further stated that if the legislature had the intention of including the documents/statements recorded under Section 173(5) as part of a police report, it would have mentioned it. Even the definition of a police report has nowhere mentioned that without these statements or documents the police report shall lose its validity.
The main objective of police reports is to establish the facts and circumstances of the case along with proving the charges made against the accused. The police report acts as a summary consisting of the facts necessary to start a further investigation into the crime. Section 173 of the Code confers a mandatory duty on the police officer to furnish all the documents and materials, be they oral or written, to the magistrate. This will in turn help him to properly examine the facts and circumstances of the case, and then decide whether the case is fit for taking cognizance or not. The police report plays a vital role in determining the fate of the trial. In the case of Om Prakash And Another v. State of U.P. and Another (2022), the Allahabad High Court, while acknowledging the importance of the police report, held that where the magistrate has taken cognizance based on a police report, in such a case he is not required to write a full reasoned order if it is clear from the order that the magistrate has carefully examined the material on record.
It is to be noted that while determining whether the court should proceed against an accused or not, it must first jointly consider both the initial report and the supplementary report. This was opined in the case of Luckose Zachariah @ Zak Nedumchira Luke and Others v. Joseph Joseph and Others (2022).
First Information Report
The information regarding the commission of a cognizable offence given to the police or officer in charge of the police station is called a First Information Report (hereinafter referred to as FIR). It is the information given to the police about the commission of the cognizable offence. It forms the foundation on which the investigation of a criminal case starts. This information, when reduced to writing, becomes the First Information Report. The term ‘FIR’ is nowhere defined in the Court, but the provision for it is enumerated under Section 154 of the Code. FIR embarks on the commencement of an investigation in cases of cognizable offences. The police officer is obligated to reduce the information in writing received by him from the informant about cognizable offences.
To sum up, FIR can be defined as follows:
- It is information given to the police by any informant or any of the police’s sources;
- The information must relate to the commission of the cognizable offence;
- It is the information received first at that point in time;
- It is the foundation on which the investigation process begins.
In the case of State of U.P v. Mukesh (2013), the Court held that FIR is an indication of the happening of an incident.
Where any information is received by the police about the occurrence of an incident, which involves a cognizable offence, the police have to register the FIR based on that information. It is to be noted that, as required under Section 154 of the Code, only the main information received needs to be mentioned in the regular diary. Also, this information shall not be considered the source of every fact.
It is pertinent to mention that if the information received is through an anonymous telephonic message that does not clarify that the information is related to the commission of the cognizable offence, then it will not constitute an FIR. Just because such information was received first at that point in time does not mean that it will be treated as an FIR. The information received will constitute an FIR or not, depending on the facts and circumstances of the case.
In the case of Lalita Kumari v. State of Uttar Pradesh and ors. (2013), the Court held that the word ‘shall’ used in Section 154(1) of the Code, is mandatory. The word ‘shall’ clearly shows the intention of the legislation and states that the police are bound to register an FIR if the information is regarding the commission of a cognizable offence. The Court also stated that the only sine qua non for the registration of an FIR is that offence must be cognizable.
The purpose of providing the provision of promptly lodging an FIR is that it helps in gaining information on the circumstances in which a crime has been committed on an early basis. The lack of timely lodging of the FIR hinders the spontaneity of the investigation. Also, this may hamper the true evidence and facts. In cases where the FIR is reduced to writing after the preparation of an inquest report, this hampers the authenticity of the FIR.
Statement of witnesses
The police while investigating a cognizable offence can examine the witnesses, who have any information on the facts of the case and then reduce it in writing. This power of examining a witness by the police is enumerated under Section 161 of the Code. However, the Section does not confer with police the right of beating or confining a person for obtaining a statement. The police should not use force to extract a statement from the witness. A statement recorded under this Section during an investigation of the cross-case is not considered to be admissible.
The examination of the accused in common parlance is also termed interrogation. The examination should be done by the police officer himself who is conducting the investigation. However, in certain exceptional cases, the head constable or the writer associated with the police station may record the statements, but they must be signed by the investigation officer as well as the recording officer. Administering an oath or affirmation in the examination is not a requirement of Section 161(3). The statements recorded under Section 161 of the Code shall be provided to the accused.
In the course of the examination, the person is under obligation to answer the questions asked by the police. Provided if these questions may be such that it might expose the accused to any criminal charge or forfeiture, then he cannot be forced to give answers. The person under examination shall always speak the truth and not make any false statements. The accused has the right to remain silent, as mentioned under Section 161(2) CrPC.
However, any other witness can be punished under Section 179 of the Indian Penal Code if he does not answer the question asked by the police. Furthermore, if the witness gives false information to the police, he shall be punished under Section 193 of the IPC.
The police examine a witness under Section 161(3). After the police officer conducting an investigation examines the person who is aware of or has an idea about the facts and circumstances of the case, he shall reduce those statements to writing. The police shall not make an unreasonably long delay in recording the statements. Wherein the police make an unreasonable delay of more than 10 days, which after examination, it has also been found that it contains contradictory statements, which will hinder the authenticity and reliance of the documents. However, the court must first ask the police officer in charge about the reasons behind such a delay. A delay of very meagre time will not affect the veracity of the case. But if the delay caused in examining the victim is unexplained, then chances are that it might affect the prosecution’s case.
It is very important to understand that these statements recorded under Section 161 of the CrPC can in no way be used by the prosecution as evidence. However, it may help the prosecution make their contentions in the case stronger. These statements can be used by the defence for contradicting the contentions of the prosecution. Also, it is important to note that in cases where the witness for the prosecution turns hostile, the public prosecutor in such a case can cross-examine that witness to help him establish contradiction by using the statements made by him under Section 161 of the CrPC.
If the statements recorded fall under the purview of Section 27 or Section 32(1) of the Indian Evidence Act, 1872, then the prosecution can use such statements as evidence. The statements recorded by the police are not substantive evidence. In the case where a person whose statements are recorded under Section 161, but thereafter dies, then in such a case, these statements can be considered a dying declaration. The Court also cannot use statements under Section 161, even for drawing any disadvantageous impression against the witness.
Confessions and statements
The term ‘statement’ is nowhere defined in the Code of Criminal Procedure. But the term holds wide relevance in the criminal justice system and can have a meaning with wide connotations. Section 164 of the Code, provides that the magistrate is empowered to record the statements or confessions of a person made in the interregnum of the investigation by the police or even afterwards the investigation. However, this shall not be after the commencement of inquiry or trial. This can only be done for the statements that have been recorded under Chapter 12 of the CrPC.
In the case of State v. Ram Autar, the Allahabad High Court held that the confessions that had been recorded after the investigation had been concluded and the trial had commenced will not be admitted. The magistrate is bound to provide copies of statements and confessions recorded under Section 164 of the Code. This provision is to ensure a free and fair trial for the accused as well. Where the magistrate feels that recording the statement or confession of any of the witnesses will ensure a free and fair trial, he may record the statement or confession.
The statement or confession as stated under this Section shall be recorded and signed by complying with the conditions mentioned in Section 281 of the Code. The person whose confession is recorded must positively sign it. Also, the magistrate shall inform the accused that he is in no way bound to make a conversion and must not be forced to make one. The magistrate should ensure that the confession is being made voluntarily. It is to be noted that this Section includes all kinds of confessions, i.e., of both the accused as well as other witnesses.
The term ‘confession’ herein means an admission made by the person accused of a crime, in which he states or suggests that he has committed a crime, whereas the term statement recorded under this Section has a very limited scope and cannot be treated as substantive evidence. These are recorded to fix the statements given by the witness when the court fears that he might back off from his statement or it may have been tampered with.
Document or Relevant Extracts
Section 207(v) of the Code, states that the accused shall be forwarded copies of other documents or relevant extracts from documents based on which the case is made against him and which have been recorded under Section 173(b) of the Code.
The Court in the case of Arvind Kejriwal vs. State of NCT Delhi (2020), held that the police shall transfer all the documents or evidence to the magistrate to bring them to the notice of the Court irrespective of the fact that the police think that some particular material is not important for the case of the prosecution. The police are not entitled to decide the point and forward all the materials to the magistrate.
The term “any other document or relevant extract thereof forwarded to the magistrate with the police report under S. 173(5) ” can even include documents or papers which are too numerous to mention like, postmortem reports, handwriting reports or reports of fingerprints, sanction copies, reports of chemical examination books of accounts, bills, registers, correspondence, copy of cheques. In the case of Mithan Lal v. State Of Haryana And Anr. (1979), it was held that wherein such documents or materials are voluminous, then the court rather than supplying copies to the accused, can ask the accused to inspect such documents personally or in court through a pleader.
Judicial pronouncements of Section 207, CrPC
Superintendent & Remembrancer Of legal affairs v. Satyen Bhowmick and ors. (1981)
Facts of the case
In the case of Satyen Bhowmick, the accused was charged under the offences of the Official Secrets Act of 1923. The accused was suspected of the fact that he passed some very confidential secrets of the military to the enemies, and thus, was held under Section 3, Section 9, and, Section 10 of the Act. This act of the accused of spilling the secrets resulted in a huge detriment to the country. During the committee inquiry that was going on, the prosecution requested the magistrate that certain copies of statements must not be supplied to the accused. However, the defence lawyer was allowed to take note of those statements. Thereafter, the magistrate asked the opposition to furnish those notebooks for perusal, which the defence lawyer denied, stating that he was entitled to this privilege under Section 126 of the Indian Evidence Act, as those notes had some important points given by the accused. The magistrate upheld the contention of the lawyer. Later on, the state went before the Supreme Court by filing a revision.
The issue in the present case was only about the scope of Section 14 of the Official Secrets Act, 1923, and whether the accused is entitled to get copies of documents or statements in cases that relate to this Act.
The Apex Court held that the right of the accused to get copies of all the statements or documents, on which the prosecution has relied or based on which charges have been made, exists even in the cases wherein the accused is held for offences under the Official Secrets Act,1923. The Court further stated the magistrate should have proceeded against the defence lawyer for not complying with his order of showing the notebooks. The Court clarified that providing copies to the accused doesn’t come under the purview of Section 14, of the Act.
Kishor v. Sudama Prasad and ors. (2001)
In the present case, the Madhya Pradesh High Court held that the object behind Section 207 of the Code, is that the accused should be made aware of the case made against him. It was further held that the investigating officer does not have any option other than to forward all the copies of the statements, evidence, or documents to the magistrate so that he can further furnish those copies to the accused. This is done to ensure a free and fair trial. Section 173(5)(a) of the Code mandates that the copies shall be forwarded to the magistrate by the police officer. Section 173(5), 173(6), and Section 207(1), when read together, make it crystal clear that the police are duty-bound to forward all the copies of recorded statements to the magistrate which will further help him to discharge his duties.
Dharambir v. Central Bureau of Investigation (2008)
Facts of the case
In the Dharambir case, the petitioner was charged with violating Section 120 B of the Indian Penal Code, along with Sections 7 to 12, Section 13(2), read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The charge sheet filed by the police consisted of some phone conversations between the accused persons, which were further saved on a hard drive and kept in the special unit of the Central Bureau of Investigation. After following the due process and proper investigation for these tapped phone recordings, they were forwarded to the learned Special Judge in New Delhi. The accused were provided with copies of charge sheets, other relevant documents, and the transcripts of the phone conversations. However, the accused persons applied to the Special Judge that they must be given mirror image copies of the hard drives, which was rejected by the learned Judge. Being aggrieved by the decision of the learned single judge, the accused filed a petition under Article 226 of the Constitution.
- Whether the hard drives on which intercepted phone conversation was stored come under the purview of ‘papers’ as per Section 173(5)(a) the CrPC, read with Section 207(v) the CrPC?
- Is the prosecution free to choose which of the documents must be forwarded to the accused depending on the fact that they have only relied upon a few of the documents gathered?
- Does the trial Court have the power to supply those copies also for which the prosecution says that they have not relied upon those documents?
- Is the denial of documents at the pre-charge stage in contravention of the rights of the accused?
- Can the prosecution only provide the relevant extracts from a hard drive or is it mandatory that the accused must be forwarded complete recordings?
Judgement and observations
The Court held that the telephonic recordings that were stored in the drive come under the purview of the word ‘document’ as defined under the Indian Evidence Act. The Court further stated that there is a difference between the documents forwarded by the police to the court along with charge sheets or the ones that were sent to it earlier while the investigation was going on, and, the statements recorded under Section 161 of the Code, which are also forwarded to the police. From a bare perusal of the relevant provisions of the Code, the intention of the legislature to treat these two as separate is very clear. Concerning the statements recorded by the police of the witnesses, it holds a certain amount of discretion regarding whether to forward them or not. However, a reasonable explanation and the presence of public interest are expected from the police, which must be provided by them to the magistrate. Further, it was said that the first proviso to Section 207(v), empowers the magistrate to even provide such copies to the accused if it deems fit. It is to be noted that this is not the case with the documents, the police have to furnish all the documents before the magistrate. Also, in matters concerning such documents, the magistrate has no choice but to forward these to the accused except when they are voluminous.
Ujjawal Das Gupta v. State (2008)
Facts of the case
The case of Ujjawal Das involved the provisions of three statutes, namely, the Indian Penal Code, the Officials Secrets Act, and the Code of Criminal Procedure. The case was very similar to the Satyen Bhowmick case, which has been discussed earlier. The petitioner in the present case was a retired Brigadier and was working with the Research and Analysis Wing (R&AW) at that time. The petitioner was accused of supplying documents from the National Security Council Secretariat, where he was working at that time, to some foreign agents. At the time of the investigation and when his arrest was made, three pen drives on which those documents were stored were procured from the petitioner. The data was also stored on his official laptop. The petitioner was denied certain copies of documents on which the respondent relied by the magistrate, and hence he preferred a petition before the High Court of Delhi.
Whether those documents should have been forwarded to the accused even if the case involved the offences of the Official Secrets Act and does the supply of these documents include Section 14 of the Act?
Judgement and observations
The Court relied on the judgement passed in the Satyen Bhowmick case and held that the petitioner has the right to get the documents, and has set aside the order passed by the Special Judge. It was held that just because the case comes under the purview of the Official Secrets Acts, the legal position cannot be different. The accused has the right to a free and fair trial, and thus, the copies must be supplied to him. Provided that the privacy and confidentiality of those documents must be maintained by both the accused as well as his lawyer.
Manjeet Singh Khera v. State of Maharashtra (2013)
Facts of the case
In the case of Manjit Khera, the accused was charged with offences under Section 13(2), read with Section 13(1)(e) of the Prevention of Corruption Act, 1988, read with Section 109 of the Indian Penal Code. The accused filed an application requesting that the prosecution be directed to supply them with a copy of the original complaint, which was filed by an unknown person. The trial court rejected the application of the accused. Thereafter, the petitioner moved an application before the High Court, where his application was also rejected, and hence he came before the Apex Court.
Is the prosecution bound to supply the original complaint made by an unknown person to the accused as the inquiry was initiated based on that complaint?
Judgement and observation
In a catena of cases, it has been observed by the courts that several documents are seized during an investigation, in a criminal case. While going through these documents, the investigation agency applies a fair amount of mind and scrutinises the documents in two categories. These two categories comprise; one which supports the prosecution, and the other that is in the favour of the accused. The Court held that the prosecution is bound to forward all the documents to the accused irrespective of the fact that it might favour the accused. In case initially, these documents have not been forwarded, and in the later stage accused demands these documents then they must be provided to the accused. Furnishing the documents to the accused is an inalienable right that the accused possesses, in respect of a free and fair trial.
Tarun Tyagi v. Central Bureau of Investigation (2016)
Facts of the case
In the case of Tarun Tyagi, the accused was prosecuted by the Central Bureau of Investigation under Section 66 of the Information Technology Act, 2000 along with Sections 63, and 63 B, read with Section 14b(ii) of the Copyright Act, 1957. The prosecution filed the charge sheets, along with some documents saved in hard drives which were not furnished to the appellant herein. The application filed by the accused for the supply of these documents was rejected by the trial court as well as the high court. Hence, the appellant filed an application before the Supreme Court.
The issue before the court was to decide whether the accused is entitled to get copies of those documents even after the apprehension made by the prosecution lawyers that furnishing those documents at this stage might result in the accused’s misuse of the documents.
Judgement and observation
The Court did not at any stage dispute that, as provided by Section 207 of the Code, the accused has the right to get all the copies of the documents, and this fact was not disputed by the prosecution. However, the only contention of the prosecution is that providing the documents at that stage may have adverse consequences. The important point that needs to be taken care of is that, if the accused is provided with the copy, then under no circumstances should it be possible that the contents of the drive can be tampered with. The Court dismissed the petition of the accused and held that it must be made sure that those contents are safeguarded, but at the same time, the rights of the accused should be taken care of by providing him with a fair opportunity to defend himself.
Exceptions to Section 207
In respect of the copies of documents or materials that must be supplied to the accused, there exist certain exceptions that allow the police or magistrate to restrain the supply of certain copies of documents or statements to the accused. Some flexibility or an element of discretion has been provided to the police officer and magistrate, to withhold certain documents. As stated above also, there exist certain documents or statements that are voluminous and can be withheld by the magistrate but do there exist any such cases wherein documents can be withheld even if they are not voluminous?
It has been observed in a plethora of cases pertaining to the category of offence, that deals with ‘Modesty of women’ under the Indian Penal Code, or cases of offences under the Protection of Children from Sexual Offences Act, 2012, in which the prosecutor requests to restrain the supply of documents or materials, including electronic evidence, to the accused since they may prejudice the victim’s rights or if they are very sensitive materials. Although Section 207, is clear on the point of exception that the voluminous documents can be withheld, the Courts in various instances have also allowed the plea of the prosecution to withhold certain other documents also, taking into view the gravity of the matter. This is done to balance the rights of both the accused and the victim or even the prosecution. The courts have granted permission to withhold the documents, and just ask the accused to inspect such documents, even though they are not voluminous.
In cases where the prosecution pleads that the documents may be misused by the accused, or if they are very sensitive documents and there is reasonable apprehension behind such pleas, the court agrees to withhold the documents despite their not being voluminous. Also, where the Courts find that supplying any document which might cause harm to the victim’s identity, in such cases they may order the accused to inspect those documents rather than supplying them with a copy.
P. Gopalkrishnan v. State of Kerala and ors. (2020)
Facts of the case
In the case of P. Gopalkrishnan, the appellant was one of the accused who was facing a trial for an offence punishable under Section 376 of the IPC. In this matter, the documents and materials that were supplied to the appellant did not include a copy of one piece of electronic evidence, which was relied upon by the prosecution to prove their case. The electronic evidence was said to have a video of the incident. The appellant asked for a copy of that video by way of filling out an application before the Judicial Magistrate which was later on rejected. The Magistrate however allowed the appellant to inspect the video. Being aggrieved by the order, he moved an application before the High Court of Kerela, which was also rejected. Hence the appellant preferred an appeal before the Supreme Court.
In the present case, the Apex Court dealt with the matter concerning the rights of free and fair trial of the accused versus the right to privacy of the victim. The main issue before the Court was whether the contents of memory cards come under the purview of the meaning of documents as given in the Indian Evidence Act. The second issue raised was whether the Court can decline the application of the appellant, to furnish the contents of the memory card as they were relied upon by the prosecution, to prove their case and thereby the accused’s guilt.
Judgement and observations
The Court held that a balance must be maintained between the right guaranteed under Article 21 of the Indian Constitution to the accused (right to a free and fair trial) and the right to privacy of the victim. The balance must be maintained between the two fundamental rights. Since it was observed that there was a conflict between two rights, the Court applied the test of larger public interest, and the Court also stated that since the CrPC, is an ongoing statute it must be applied to cases keeping in view that it is contemporary with the situation and the changes thereof. It was further stated that the offence for which the accused has been charged is very serious and that in such cases keeping in view the rights of the accused the copies must be furnished to him. However, it is also important to take into account the privacy of the victim, and thus, balance this conflict that has arisen between both rights. It is important to note that the documents herein were the memory card’s contents. The Court finally held that the accused will only be allowed to inspect the contents of the memory card keeping in view the peculiarity of the case, even if the document cannot be treated as voluminous since it is an electronic record, and the same could have been supplied.
Criticism of Section 207
The Section mandates the Court to furnish copies of documents to the accused, that the prosecution relied upon. The Court is duty-bound to supply a copy of the police report, FIR, statements recorded under Sections 161, and 164 of the Code, or any other document or relevant extract, that the prosecution relies on. Non-compliance with this section leads to infringement of the rights of the accused as guaranteed under the Indian Constitution. However, in various instances, it has been observed that the accused uses several means to tamper with these statements and evidence, especially in high-profile cases. Also, in certain cases where the accused belongs to a sound family with a strong background, they try to use their power to suppress the witnesses and often try to cause harm to the victim by threatening the victim and their family. In some cases, they try to bribe the witnesses once they get acquainted with the documents and statements that may be used against them by the prosecution. In such cases, it becomes very hard to get the accused convicted, thereby resulting in the acquittal of even the criminals.
This Section was enumerated with the view of enabling the accused a free and fair trial by supplying copies of documents and other materials, thereby providing him with a proper opportunity to defend himself. Section 207 of the Code, forms a very crucial part of criminal jurisprudence and plays a significant role in ensuring the safety, and protection of the rights of the accused. The idea behind this Section is to acquaint the accused with the case made against him, and thus, give him a chance to defend himself when the trial commences. The Apex Court, and the High Courts, have held in a plethora of judgements that the magistrate must supply copies of the documents to the accused.
FAQs on Section 207, CrPC
When is a police report considered complete to forward to the magistrate?
A police report is said to be completed when it is made following the manner prescribed under Section 173(2) of the Cr.P.C.
Does the magistrate have limited discretion in considering the matter of the supply of documents?
It has been observed in various judgements by the courts that ordinarily the magistrate has very limited discretion in the matter of supplying documents. The Magistrate is bound to supply the copies except in the case where the documents are voluminous. In such cases, he can order for inspection.
Can the contents of a memory card or pen drive be considered documents as mentioned under Section 207 of the Code?
It is to be noted that a particular content can be treated as a document or not, will be determined based on its nature, and not by the place where it has been stored. It depends on what information that content holds, and the relevance it has in the prosecution’s case.
Is the Magistrate bound to supply the documents about the supplementary investigation also?
It is to be noted that wherein the investigation officer has been granted permission to conduct a further investigation by the magistrate, and wherein the supplementary report contains facts related to the accused then the magistrate is bound to supply a copy of such supplementary charge sheets and reports to the accused.
- Sarkar, The Code of Criminal Procedure, 11th edition (2015).
- DD Basu, Code of Criminal Procedure, 1973, 6th edition.
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